Chapter 1 explains how examples used in this chapter were chosen.
Chapter 2 synthesizes key challenges related to information and introduces the CIRCle Framework of regulatory functions for addressing cumulative environmental problems.
Chapter 3 sketches the landscape of laws that may respond to cumulative environmental problems, including those that focus on information.
Chapter 4 (“Conceptualization”) discusses rules for articulating what and who we want to protect from cumulative impacts (the “matter of concern”), about which information is needed.
Chapter 6 (“Regulatory intervention”) discusses how rules can influence behavior to ensure that cumulative harm to the matter of concern stays within acceptable limits.
Chapter 7 (“Coordination”) covers coordinating between and among agencies and levels of government, nongovernment, and quasi-government entities, including to gather and share information.
Each case study (Chapters 8–10) focuses on specific CIRCle Framework functions. Chapter 9 examines information in detail using the context of the health of the Great Barrier Reef, Australia. It focuses on strategic environmental assessment as a key tool for information, and explains its links to regulatory intervention.
5.1 Information as a Regulatory Function
Acting to restore or protect something that we care about (the “matter of concern”) from unacceptable cumulative harmFootnote 1 depends on information. As described in Chapter 4, the matter of concern can take diverse forms, from a species, to an atmospheric concentration of greenhouse gases, or the ecological integrity of a river. I define information expansively as the outcome of analyzing data (quantitative or qualitative, including concepts and theories, produced in a Western scientific tradition or otherwise)Footnote 2 about the matter of concern, impacts to it, and rules and actors relevant to those impacts.Footnote 3 Information may be produced by governments, regulated entities, community members or other stakeholders, or it may be “co-produced” between multiple of these parties.Footnote 4
Legal literature on the environment and information tends to focus on issues such as defining “best available” science or knowledge, or environmental impact assessment (EIA) laws, or, increasingly, the risks posed by technology related to environmental information.Footnote 5 I take a few steps back, and argue that laws for dealing with cumulative environmental problems should be information-making, not just information-taking. That is, rules can and should actively provide for producing, sharing, aggregating, and analyzing data to produce information that helps us understand the things we care about, and the cumulative threats that they face, so that rules for intervention can restore them or protect them from cumulative environmental harm.
As discussed earlier in this book,Footnote 6 effectively producing and using information to deal with cumulative environmental problems faces key challenges to which the design of information-related rules must respond. Impacts may accumulate in slow, complex, and sometimes nonlinear ways, which can make these problems hard to perceive. Generating information about the matter of concern and actions that cause relevant impacts can be costly and sharing it can encounter commercial, political, and community resistance. Contributors to the problem may be unwilling to share their data and information with government, and government may be unwilling to make information public or listen to community concerns about impacts and even ways of understanding what matters in the first place. This last point is especially important in the context of Indigenous and traditional knowledges, as this Chapter discusses further. Communities may raise concerns that collecting “big data” may harm privacy, or have potential discriminatory effects or a “chilling effect” on legitimate human activities.Footnote 7 These social issues related to information also deserve the attention of regulatory designers.Footnote 8 Finally, comparable data related to a matter of concern are often in short supply, making it difficult to build a picture of cumulative environmental change, and information can be subject to unavoidable uncertainty because of multiple, interacting, and complex cause-and-effect relationships.
Addressing these challenges is fundamentally about power, rather than just an instrumental technical issue about measuring things to understand them better. Rules for information about a cumulative environmental problem can address the power asymmetries that exist among the public, government, contributors to a problem, and those affected by it.Footnote 9 Gathering, aggregating, and making public the information about past, present, and future conditions of a matter of concern and impacts on it allow the public and decision-makers to see how the effects of multiple activities can aggregate to harm the environment. This is critical for environmental democracy, environmental justice, and the rule of law.Footnote 10 Information facilitates meaningful civic engagement and enables the public and affected communities to demand accountability and action from governments and contributors to the problem; information without an advocate may have little impact on intervention.Footnote 11
Informed by these challenges, information is one of four central functions that this book argues that regulation must deliver to respond to cumulative environmental problems. These four functions, of conceptualization, information, regulatory intervention, and coordination, form the “CIRCle Framework” of regulatory functions advanced by this book.
This chapter begins by exploring the broad types of information needed to respond to cumulative environmental problems and regulatory methods of making links with conceptualization, regulatory intervention, and coordination. Section 5.2 then discusses a key factor likely to vary between cumulative environmental problems: the key actors involved in information. Section 5.3 considers types and examples of legal mechanisms to help address the key challenges associated with information outlined in Chapter 2: obtaining comprehensive, high-quality, and shareable data and analysis; allocating and reducing the associated costs; and sharing and accessing data and information. Chapter 7 (Coordination) then focuses on information as an important issue in coordination among governments and stakeholders.
5.1.1 What Information Helps Address Cumulative Environmental Problems?
We turn first to exploring the information required to deal with a cumulative environmental problem, summarized in Figure 5.1. Addressing cumulative environmental problems first requires understanding the matter of concern subject to cumulative change (see Chapter 4 “Conceptualization”). This means having information to establish cumulative threshold conditions – that is, the limits of acceptable conditions – against which a set of current or expected conditions or impacts can be compared to determine whether intervention is required. Monitoring ongoing environmental conditions is needed to reveal trends and unexpected changes in the condition of the matter of concern.
Figure 5.1 Information needed to analyze and respond to cumulative environmental problems using formal rules
Figure 5.1Long description
The information includes the following. 1. Rules and actors include regulators and contributors to threats and benefits. 2. Impacts of threats and benefits are produced by regulated and lawful activities, regulated and unlawful activities, unregulated activities, and background stresses. 3. Elements and conditions of the matter of concern include what and who matters and their conditions, spatial boundaries, and cumulative threshold conditions. The producers and sharers of this information are government agencies, regulated entities, N G Os, citizen scientists, and affected communities and entities.
Dealing with cumulative environmental problems also requires attention to the other side of the picture: understanding impacts to the matter of concern caused by (1) actions that are regulated and lawfully undertaken, (2) actions that are regulated but carried out in a way that exceeds their authorization (e.g., emitting more pollution than an authorization permits) or that are carried out without required authorization (for brevity, “unlawful actions”), (3) actions that are not subject to regulation (“unregulated actions”), as well as (4) “background” effects that are difficult to attribute to an individual actor or action, but affect a matter of concern, for example, dust storms or wildfire affecting air quality, or invasive species affecting threatened species.Footnote 12 Sources of impact may be outside the spatial boundaries of the matter of concern – something that laws are not always good at recognizing.Footnote 13
Addressing cumulative environmental problems may also involve predicting the likely cumulative impacts of proposed actions. This is especially important for cases in which, by the time significant change is detected, it can be difficult or impossible to reverse the environmental damage. Groundwater pollution, for example, may be practically impossible to remediate either due to cost or limitations of current technology.Footnote 14 EIA laws are an important, though not the only, area of law that provides for this type of predictive analysis. Predictions of cumulative change at the regional scale, involving many actors, are also used in addressing cumulative environmental problems, for example, through strategic and regional environmental assessments and natural resources planning.Footnote 15 The resulting information can then be used to inform regulatory processes for individual future actions in these regions.
The outcome of understanding impacts – whether direct or indirect, anthropogenic or not, current or planned – is the ability to consider existing and potential interventions that seek to modify impacts or take other action to address unacceptable harm. This also requires information about the landscape of existing regulators and rules for regulatory interventions that “highlights their collective capacity to serve as a barrier to pressures” (i.e., their effectiveness).Footnote 16 Different types of intervention may produce different information needs, and there is theoretically a higher need for information about effectiveness for regulatory interventions that have relatively low outcome reliability.Footnote 17 For example, allowing an impact to go ahead with compensatory (offset) measures requires special attention to monitoring to ensure that those measures are effective and maintained over the long term.Footnote 18
There will likely always be more data to gather, analyze, and share to better understand a problem. The important thing is not that the public or decision-makers know everything there is to know about the problem, but that the rules provide for having enough usable information to support the other interlinked functions of the CIRCle Framework. We turn now to distilling these connections.
5.1.2 Information as an Integrated Regulatory Function in the CIRCle Framework
Though legal scholars focus relatively rarely on data collection and analysis as the subject of rules,Footnote 19 many strands of regulatory theory assume that information has an important place in implementing regulatory interventions.Footnote 20 Coglianese’s “regulatory excellence” framework, for example, highlights the importance of regulators using trustworthy data supported by peer review processes and making the information that they use accessible to regulated entities and the public.Footnote 21 Risk-based regulation requires regulators to “continually gather and assimilate information to inform better strategy and tactics, and to inform the allocation of finite resources.”Footnote 22 The use of technology to produce information is a prominent emerging theme more generally in regulatory theory.Footnote 23
As shown in Figure 5.2 (building on Figure 2.1, which depicts basic links between regulatory functions), information may both influence and be influenced by regulatory functions related to conceptualization, intervention, and coordination – the other functions of the CIRCle Framework for rules to respond to cumulative environmental problems. First, the conceptualization of a cumulative environmental problem points to the information that must be gathered about the characteristics of a matter of concern, its condition, and the actions and actors that impact it. Before generating information, it is important to have a clear initial idea of what the matter of concern is (Chapter 4 “Conceptualization”), recognizing that this conceptualization may change.Footnote 24 Information can also lead to refining and adapting how a matter of concern is conceptualized because processes for generating information may shift participants’ values. Information collection and analyses undertaken in the context of cumulative environmental problems heighten this transformational potential because it engages values-rich questions about who is affected by environmental change in space and time, and what level of harm or change a society will accept.Footnote 25
Figure 5.2 Integration of legal mechanisms for information with other CIRCle Framework functions, each necessary for regulating cumulative environmental problems
Figure 5.2Long description
The interactions are as follows. 1. Coordination facilitates comparability and sharing, and promotes legitimacy, of information. 2. Information reveals relevant information producers and sharers for coordination. 3. Conceptualization drives, directs and influences approaches to information. 4. Information allows for refining and adapting conceptualization. 5. Regulatory intervention requires producing and sharing, and responds to unacceptable effects revealed by, information. 6. Information justifies, triggers, and shapes regulatory intervention.
Secondly, information about cumulative environmental change may affect whether and how existing regulatory interventions address unacceptable change. Of course, decision-makers might ignore information about cumulative change in making decisions about interventions, but legal mechanisms can help counter this. Most national EIA laws around the world expressly require decision-makers to consider cumulative impacts.Footnote 26 This can theoretically affect the kind of assessment or the kind of mitigation measures required for a project, and whether the project will go ahead.Footnote 27 Outside the impact assessment context, interventions can draw on information in a range of context-specific ways, from extending the reach of endangered species laws if an endangered species is found in a new location to modifying a limit on groundwater withdrawals in response to new information about recharge rates. Information about environmental challenges can also influence how many people take up voluntary interventions (“regulatory carrots”), such as financial incentives for private land conservation, even where information is not designed for these persuasive purposes.Footnote 28
Information about trends in environmental conditions might also trigger a change to interventions. Just as information about the number of babies born each year informs planning for school places to respond to anticipated demandFootnote 29, information about trends in cumulative environmental change can be used to plan future regulatory change. This link might arise directly, because legal provisions expressly provide for it. Alternatively, the link might arise indirectly, when civil society, the media,Footnote 30 or independent scrutiny bodies (e.g., auditors-general, comptrollers, ombudsmen, and parliamentary or congressional committees) advocate for an intervention based on information about cumulative environmental change. Conversely, regulatory interventions themselves often require participants to collect and share information, for example, about compliance with a regulatory mandate or the performance of obligations required to obtain an incentive.
Finally, information about the matter of concern and about the actions that affect it points to the agencies, levels of government, and stakeholders that must coordinate to respond to a cumulative environmental problem because they regulate, carry out, or otherwise interact with those actions. Coordination processes themselves facilitate the sharing of data and information between stakeholders, agencies, and levels of government to facilitate standards for data comparability and data aggregation that will shed light on cumulative environmental problems. Coordination processes in relation to information can also increase the legitimacy of the resulting information and make it more likely that decision-makers will use it (both issues that are discussed in Chapter 7 “Coordination”). Coordinating about information can also create relationships between participants that are the basis for coordination more broadly.Footnote 31
5.2 Actors and Information for Addressing Cumulative Environmental Problems
The question of who is involved in relation to information is just as important as what information is needed. As argued earlier, public access to information about cumulative environmental problems is necessary for democracy and the rule of law.Footnote 32 Accordingly, the public at large generally should be involved in being able to receive information. The question of who produces, shares, aggregates, and analyzes relevant data and information is more involved. While relevant actors will vary for different cumulative environmental problems, we can make some general observations.
Governments, regulated entities, nongovernment organizations, and individuals may all contribute to data collection and analysis in ways that are relevant to regulating cumulative environmental problems. Governments can, and do, collect data about background effects and the changing conditions of matters of concern that are the focus of regulation, including using participatory approaches that involve stakeholders to varying degrees.Footnote 33 Regulated entities are often required,Footnote 34 and are best placed, to collect data about the impacts of their operations, since they have access to relevant sites and management details. Since the impacts of unlawful actions will not usually be self-reported, governments must usually collect these data, sometimes supplemented by citizen scientists.
Nongovernment citizen science or “crowdsourcing” initiatives may collect relevant data, for example, using digital platforms that record individuals’ observations, from recording birds or plants to air quality recordings.Footnote 35 Some citizen science initiatives deal with unlawful actions, such as illegal gold mining and logging, potentially contributing to enforcement actions,Footnote 36 and unregulated but potentially harmful actions, such as the construction of many small dams that reduce streamflow in a watershed.Footnote 37 Citizen science initiatives may also deal with background effects that cannot be attributed to an individual actor or activity and may be either unlawful or unregulated, like the spread of invasive alien species,Footnote 38 or light pollution at night.Footnote 39
For some matters of concern, data and information collected voluntarily by nongovernment organizations and individuals is indispensable to addressing cumulative environmental harm, for example, when a community experiences cumulative impacts of concern, or holds special knowledge that is central to understanding impacts, as with cultural heritage. Equally, data from citizen scientists can be important where government capacity, resources, or motivation fall short. From a social perspective, using nongovernment-sourced data – and including stakeholders and communities in processes relating to the analysis and use of government data – can help improve the legitimacy and credibility of the resulting informationFootnote 40 and the regulatory interventions that it may trigger. This is the case for environmental problems in general. However, because cumulative environmental problems implicate so many actions – including those that are individually minor and not regulated, but may cause cumulatively significant harm – there is an especially pronounced need for community involvement and acceptance to counter the increased potential for political and public pushback to producing information.
These issues of the relevant actors, information sources, and types all arise in the crosscutting design features discussed next.
5.3 Crosscutting Design Features
Ideally, data and information about matters of concern, changes in their condition, and cumulative pressures would be comprehensive, standardized, or otherwise made comparable where possible. They would widely be considered technically credible and socially legitimate. They would be either centralized or otherwise aggregated and easily available and understandable to the public and any agency that needed to use this information to inform its decision-making. These are the conditions that rules for information to help address cumulative environmental problems should be designed to create, while also addressing the social, political, and economic disincentives to achieving them.Footnote 41 This section deals with design features to address three key areas of regulatory challenge that cut across information contexts: obtaining comprehensive, high-quality data and analysis; allocating and reducing the associated costs; and sharing and accessing data and analysis.
Information-related provisions appear frequently in a wide range of legal situations dealing with cumulative environmental problems, from natural resources allocation to pollution controls. Other relevant legal contexts – for example, human rights related to the environment – seem rarely to deal with information, though information is crucial to their operationalization.Footnote 42 The illustrative examples of regulatory solutions presented here are drawn from many areas of law, and a wide range of jurisdictions, recognizing that jurisdictions vary significantly in their appetite for regulatory detail in prescribed processes and public involvement.Footnote 43
5.3.1 Obtaining Comprehensive, High-Quality Data and Analysis
Data about a cumulative environmental problem are comprehensive if they cover all the information needs relating to the matter of concern to understand and respond to cumulative threats.Footnote 44 In practice, though, regulations tend to overlook some important types of data. For example, rules more rarely provide for collecting data about actions that are not regulated than they do for regulated actions, even if both types of activities have the potential to cause significant cumulative harm. Table 5.1 provides examples of regulations that expressly address each of these key ongoing information needs. Additional research or information of a non-ongoing nature may also be needed to support conceptualization, for example, to establish “safe” levels of a pollutant, and intervention, for example, to understand the motivations and capacities to change behavior of contributors to cumulative impacts.Footnote 45
Table 5.1 Mechanisms to fulfill information needs for addressing cumulative environmental problems
| Legal mechanism | Illustrative examples |
|---|---|
| Requirement to regularly collect data about the conditions of a matter of concern and report on aggregate effects over time | Chapter 9 of this book describes the integrated information system that informs interventions to protect the Great Barrier Reef, Australia. It includes a statutory obligation to produce a five-yearly, peer-reviewed “Outlook report” on the health of the Reef.Footnote a |
| Requirement to collect and report data about actions that are regulated and lawfully undertaken | Entities subject to hazardous waste reduction requirements in Indonesia must report periodically on how they implement this duty.Footnote b |
| Requirement to collect and analyze data about actions that are regulated by law but carried out in a way that exceeds their authorization (e.g., emitting more pollution than an authorization permits), or that are carried out without any authorization (for brevity, “unlawful actions”) | Kenya’s statutory National Environment Management Authority has duties to monitor compliance with a wide range of laws, including to monitor “activities that are likely to have a significant effect on the environment” (which is expressed notably broadly), compliance with pollution standards, resource use patterns, climate change duties, and carbon market compliance.Footnote c New York City’s Citizens Air Complaint Program uses payment to incentivize third parties to report unlawfully idling vehicles.Footnote d |
| Requirement to collect data about activities that are not (or not yet) subject to regulation (“unregulated actions”) | In Australia’s Murray-Darling Basin, state governments write statutory plans that must provide for monitoring and assessing the potential of unregulated water uses (such as tree plantations and water withdrawals for domestic purposes) to have cumulatively significant impacts on the availability of water in rivers and aquifers.Footnote e A Seychelles multistage plan to recover populations of shark pursuant to its international obligations begins with identifying and recording (at that stage, unregulated) artisanal shark fishers, paving the way for phased interventions.Footnote f |
| Requirement to collect data about “background” effects that are difficult to attribute to an individual actor or activity | The recovery plan for the endangered California Condor, mandated under the US Endangered Species Act, plans information collection and associated measures in relation to damaging background effects such as habitat loss, poisoning by lead shot, collisions with structures, and natural predators.Footnote g |
| Requirement to collect data about indirect drivers of cumulative change, which may involve regulated, regulated but unauthorized, or unregulated actions | Italy’s environmental accounting law, which requires annual natural capital accounts, is considered “advanced practice” in Europe.Footnote h Reports estimate subsidies that harm biodiversityFootnote i and must include proposals to phase out environmentally harmful subsidies.Footnote j |
a Great Barrier Reef Marine Park Act 1975 (Australia) s 64.
b Peraturan Pemerintah Republik Indonesia nomor 22 tahun 2021 tentang Penyelenggaraan Perlindungan Dan Pengelolaan Lingkungan Hidup [Government Regulation no. 22 of 2021 on Environmental Protection, Organization and Management] (Indonesia) art. 284.
c Environmental Management and Co-ordination Act 1999, as amended (Cap. 387) (Kenya) ss 68(1), 117(2); Climate Change Act 2016, as amended (Cap. 387A) (Kenya) ss 16–17; Climate Change (Carbon Markets) Regulations 2024 (Kenya); National Environment Management Authority (Kenya), “Development of the National Carbon Market Registry” (n.d.) www.nema.go.ke/index.php?option=com_content&view=article&id=412:development-of-the-national-carbon-market-registry&catid=10:news-and-events&Itemid=572#, last accessed March 18, 2025, archived at https://perma.cc/QP8C-3BWP.
d New York City Administrative Code § 24-163; NYC Environmental Protection, “Transportation Emissions: Citizens Air Complaint Program” (n.d.) www.nyc.gov/site/dep/environment/idling-citizens-air-complaint-program.page, last accessed March 18, 2025, archived at https://perma.cc/5KE4-YYRS.
e Basin Plan 2012 (Australia) ss 10.23–10.25; Rebecca Nelson, “Challenges to Improved Integrated Management of the Murray-Darling” in Barry Hart and others (eds), Murray-Darling Basin, Australia: Its Future Management (Elsevier 2021) 339–361, 349–350.
f Seychelles Fishing Authority, National Plan of Action for the Conservation and Management of Sharks 2016–2020 (2016) 68, https://mofbe.gov.sc/wp-content/uploads/2021/09/National-Plan-of-Action-for-the-Conservation-and-Management-of-Sharks-2016-2020-3.pdf, archived at https://perma.cc/7XW9-VPLA; identified international obligations include those under the United Nations Convention on the Law of the Sea, December 10, 1982, Montego Bay, in force November 16, 1994, 1833 U.N.T.S. 396, among other laws: ibid 93.
g 16 U.S.C. §1533(f), Lloyd F. Kiff, Robert I. Mesta and Michael P. Wallace, Recovery Plan for the California Condor (3rd ed., 1996, US Fish and Wildlife Service) 30–33; see also US Fish and Wildlife Service, “California Condor Recovery Program” (n.d.) www.fws.gov/program/california-condor-recovery, last accessed March 18, 2025, archived at https://perma.cc/7HNM-HQ86.
h Directorate-General for Environment (European Commission), Environmental Implementation Review 2022: Country Report – Italy (SWD/2022/275 Final) (European Commission 2022) 3; Legge 28 dicembre 2015, n. 221 Disposizioni in materia ambientale per promuovere misure di green economy e per il contenimento dell’uso eccessivo di risorse naturali [Law on environmental provisions to promote green economy measures and to contain the excessive use of natural resources] (Italy) (“Italian Green Economy Law”), art. 67; Comitato per il Capitale Naturale, Quinto Rapporto sullo Stato del Capitale Naturale in Italia [Fifth Report on the State of Natural Capital in Italy] (Government of Italy 2022) www.mase.gov.it/sites/default/files/archivio/allegati/CapitaleNaturale/V_Rapporto_CN.pdf, archived at https://perma.cc/V59Q-ZC89.
i E.g., Comitato per il Capitale Naturale, Quinto Rapporto, 172–176; Italian Green Economy Law), arts. 67 (Natural Capital Committee), 68 (catalog of subsidies).
j Italian Green Economy Law, art. 68(2).
Information that is high-quality for the purposes of cumulative environmental problems are produced using analytical methods that are transparently reported, appropriate to the subject matter, and robust (about which it is difficult to generalize, but which policy guidelines may flesh out, as discussed later). It may be unrealistic to avoid significant uncertainty about predicted future conditions of a matter of concern due to nonlinear and indirect effects, and analysis may involve potentially significant simplifications and assumptions.Footnote 46 Accordingly, regulations should provide mechanisms to ensure clarity and transparency about these matters, in particular.Footnote 47 Given its complexity, good cumulative impact analysis requires sufficient regulatory timelines to undertake modeling and coordination between multiple agencies to ensure access to expertise and robust work.Footnote 48 In addition to models and quantitative data, high-quality data may also include data produced outside Western scientific disciplines. This includes First Nations’ knowledges, subject to appropriate protocols,Footnote 49 and qualitative information, a form that some cumulative impact analyses adopt.Footnote 50
Regulatory approaches to ensuring high-quality data and analysis and addressing key risks tend to fall into two categories: those that use broadly worded principles to describe the kind of data and analysis that decision-makers must use (e.g., “best available science” and related terms) and those that prescribe processes to ensure certain aspects of quality or to head off risks. Principles for data analysis may expressly or implicitly require cumulative impact assessment (see Table 5.2).
Table 5.2 Mechanisms to promote high-quality data and information for addressing cumulative environmental problems
| Legal mechanisms | Illustrative examples |
|---|---|
| Protocols for interface between Western and other knowledge systems in understanding a matter of concern | To avoid inappropriately integrating Indigenous knowledges into Western science as a “resource,” some frameworks and protocols for knowledge generation, like Two-Eyed Seeing, Etuaptmumk (Miâ•Žkmaw; Eastern Canada), expressly seek to “remedy, rather than reinforce, existing power relations; respect differences, instead of suppress them; and uphold, as opposed to diminish, their unique strengths.”Footnote a |
| Principle-based standards, like “best available science” | The US Endangered Species Act requires agencies to use “best available science” when determining whether a species is endangeredFootnote b (i.e., determining the conditions of the matter of concern) and when formulating a “biological opinion,”Footnote c which must include cumulative effects.Footnote d This standard encompasses both scientific and commercial data.Footnote e |
| A “state of knowledge” standard for data collection and analysis | The “state of knowledge” that informs the standard of the environmental protection duty that applies to all persons in Victoria, Australia, includes information from business, government agencies, and independent and international organizations, including guidelines and standards.Footnote f |
| Regulatory independent scientific processes that ensure the integrity of data and analysis used by regulatorsFootnote g | Australian federal environmental law establishes an independent groundwater expert committee to review impact assessments, including cumulative impact assessments, of proposed coal mines and coal seam gas developments on water resources, and to advise on related bioregional assessments.Footnote h The committee was established specifically to enhance transparency and public confidence.Footnote i |
| Detailed policy guidance for undertaking rigorous cumulative impacts analysis | The US, Canada, and South Africa, among other jurisdictions, provide detailed general policy guidance for undertaking cumulative impacts analysis in generalFootnote j and in specific contexts, e.g., transportation, chemical exposure.Footnote k Some industry sectors produce their own guidance on cumulative impact assessment.Footnote l |
| Independent observers of environmentally relevant activities | Papua New Guinea’s fisheries legislation provides for independent at-sea observers to collect data for “scientific, management and compliance purposes” in relation to matters including fish taken, fishing methods, and the effects of fishing on the environment. Vessel operators and crew have an obligation to assist observers.Footnote m |
| Monitoring undertaken by communities potentially affected by cumulative impacts | Community conservancies, established under Namibia’s nature conservation law, combine community development and wildlife protection.Footnote n A key feature of these arrangements is the community-led “Event Book System,” under which conservancies design and undertake wildlife monitoring, trained by nongovernment organizations (NGOs), producing long-term data that are aggregated by government to guide interventions and compliance monitoring.Footnote o The Event Book System now also includes local-level climate change–related monitoring.Footnote p |
a See generally Reid and others, “Two‐Eyed Seeing,” especially 246, 247.
b 16 U.S.C. § 1533(b)(1)(A).
c 50 C.F.R. § 402.14(d).
d 50 C.F.R. § 402.14(g)(3), (4).
e San Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971, at 995 (9th Cir. 2014).
f Environment Protection Act 2017 (Victoria) ss 6(2), 25; Environment Protection Authority (Victoria, Australia), Reasonably Practicable, Publication 1856 (September 2020) 10, www.epa.vic.gov.au/-/media/epa/files/publications/1856-english.pdf, archived at https://perma.cc/Z6WK-PR7G. For examples of industry guidelines in relation to cumulative effects assessments, see Footnote note 70. See also generally Lindsay, Marsh and Nelson, “Conceptualising and Activating Knowledge in Environmental Protection Law.”
g Coglianese, Listening, Learning, Leading, xi.
h Environment Protection and Biodiversity Conservation Act 1999 (Australia) ss 131AB, 505C, 505D.
i Australian Government, “About the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development (IESC)” (n.d.) www.iesc.gov.au/about-us, last accessed March 18, 2025, archived at https://perma.cc/C7RU-C7SR.
j Council on Environmental Quality (US), Considering Cumulative Effects under the National Environmental Policy Act (1997) https://ceq.doe.gov/publications/cumulative_effects.html, archived at https://perma.cc/2HX5-C8SA; Impact Assessment Agency of Canada, Policy Framework for Assessing Cumulative Effects under the Impact Assessment Act (May 2023) www.canada.ca/en/impact-assessment-agency/services/policy-guidance/practitioners-guide-impact-assessment-act/policy-framework-assessing-cumulative-effects-under-impact-assessment-act.html, archived at https://perma.cc/EUU2-44PM; Department of Environmental Affairs and Tourism (South Africa), Cumulative Effects Assessment, Integrated Environmental Management Information Series 7 (2004) www.dffe.gov.za/sites/default/files/docs/series7_cumulative_effects_assessment.pdf, archived at https://perma.cc/32FV-262W.
k Transportation Projects: California Department of Transportation, Guidance for Preparers of Cumulative Impact Analysis – Approach and Guidance (2005) https://dot.ca.gov/-/media/dot-media/programs/environmental-analysis/documents/ser/approach-and-guidance-a11y.pdf, archived at https://perma.cc/6YSU-F74C; US EPA, Framework for Cumulative Risk Assessment (2003) www.epa.gov/sites/default/files/2014-11/documents/frmwrk_cum_risk_assmnt.pdf, last accessed March 18, 2025, archived at https://perma.cc/V3F7-LTPK.
l RenewableUK, Cumulative Impact Assessment Guidelines: Guiding Principles for Cumulative Impacts Assessment in Offshore Wind Farms (2013) https://tethys.pnnl.gov/sites/default/files/publications/Cumulative-Impact-Assessment-Guidelines.pdf; American Association of Highway and Public Transportation Officials (AASHTO), Practitioner’s Handbook: Assessing Indirect Impacts and Cumulative Impacts under NEPA (2016) https://wsdot.wa.gov/sites/default/files/2021-10/ENV-NSEPA_AASHTOCummHndbk.pdf, archived at https://perma.cc/QLF7-WLGH; Minerals Council of Australia, Cumulative Environmental Impact Assessment Industry Guide: Adaptive Strategies (July 2015) https://minerals.org.au/wp-content/uploads/2023/01/Cumulative_Environmental_Impact_Assessment_Industry_Guide_FINAL_0.pdf.
m Fisheries Management Act 1998 (Papua New Guinea) ss 50–55. A similar approach is used in Canada: Fishery (General) Regulations, SOR/93-53 (Canada) ss 39–40, 46–48.
n Nature Conservation Amendment Act 1996, No. 5 of 1996 (Namibia) s 3.
o Michael Wenborn and others, “Lessons on the Community Conservancy Model for Wildlife Protection in Namibia” (2022) 31 The Journal of Environment & Development 375–394, 384–389;Greg Stuart-Hill and others, “The Event Book System: A Community-Based Natural Resource Monitoring System from Namibia” (2005) 14 Biodiversity and Conservation 2611–2631, 2613.
p See generally, John Kazgeba Elijah Mfune and Kopang Bonadei Thekwane, “Empower to Adapt: Creating Climate Change Resilient Livelihoods through Community-Based Natural Resources Management (CBNRM) in Namibia: Final Independent Evaluation Report” (Green Climate Fund, 2023) www.greenclimate.fund/sites/default/files/document/fp024-final-independent-evaluation-report.pdf.
Using principles ensures flexibility, the ability to evolve over time without amendment, and applicability to a diverse set of situations. A disadvantage of principles is that their precise meaning can be disputed.Footnote 51 The risk of such disputes may be heightened where the costs of comprehensive data collection or cumulative effects analysis would be significant. This suggests the value of combining principles and either more detailed guidance about what constitutes high-quality information or the protocols, processes, and institutions that produce it. Important types of processes and institutions that appear in rules include: using independent or nongovernment bodies and observers to avoid political pressure and executive capture; peer review, standards, and accreditation; requirements for transparency about uncertainty and assumptions; and regulatory timelines that are not so short that they prevent good analysis (see Table 5.2). Embedding these requirements in rules can help ensure stability in the face of cost or other pressures.
5.3.2 Allocating and Reducing Costs Associated with Information
Large-scale and with diverse contributors to change, cumulative environmental problems are data hungry, which heightens the costs of collecting data and undertaking analysis,Footnote 52 and makes cost cutting and corner cutting significant risks. This puts issues of cost in focus: how to allocate costs, and how to contain costs in an absolute sense in a way that avoids the temptation to overlook impacts that may be individually minor but cumulatively significant. That, in turn, raises thorny issues associated with using technology.
A first element of the cost question is determining how to allocate the costs associated with data collection and analysis among contributors to a cumulative environmental problem and the state. As with standards for information quality, some jurisdictions use broad principles. Some focus on allocating costs to the contributors to a problem, like the “polluter pays” principle; others allocate costs to those who benefit from a resource or project, like the “beneficiary pays” principle; still others support a combined approach through principles like “shared responsibility” (Table 5.3). Governments with scientific agencies may be better placed than individual project proponents to collect and analyze data on background effects, such as predicted climate change impacts or general environmental trends. Natural resources plans and strategic or regional environmental assessments can then include this information, to be used in assessing projectsFootnote 53 (a kind of “tiering”). Regardless of where the responsibility falls, rules should provide clarity about who undertakes and pays for monitoring and analysis, and, ideally, consequences of not providing required information.Footnote 54
| Legal mechanism | Illustrative examples |
|---|---|
| Polluter pays principle – cost recovery for data collection based on cumulative risk | In Melbourne, Australia, municipal water service providers charge to accept trade waste into their sewerage systems; charges are based on a cumulative “risk rank” score, which considers the higher costs of more closely monitoring more complex types of discharges.Footnote a |
| Principle of shared responsibility to share costs among government and different categories of actions | In Canadian fisheries, “[t]he responsibility to pay for catch reporting and monitoring is shared between [the government agency Fisheries and Oceans Canada] and fish harvesters,” with detailed policy for sharing specific costs between government, commercial fishers, recreational fishers, and Indigenous groups.Footnote b |
| Higher standard of information and burden of proof for proponent where existing cumulative impacts are close to cumulative threshold conditions | To protect streamflow that depends on groundwater, water law in the US state of Montana requires a permit applicant for a groundwater withdrawal right in a fully appropriated basin (in which no further surface water is available) to prove, using a hydrogeologic report, that any adverse effect on a connected stream would be offset.Footnote c |
| Stable source of government funding for data collection and sharing | Namibia’s statutory Environmental Investment Fund was established to provide stable financial support to manage natural resources sustainably and gain associated benefits for local communities.Footnote d It receives money from parliamentary appropriations, statutory levies, and donations to fund activities that include “production, monitoring, use and dissemination of environmental information.”Footnote e |
| Government data collection and analysis to support a regional intervention (e.g., regulatory limit on harm or resource use), used by a proponent to compare a project’s impacts to the limit | The Office of Groundwater Impact Assessment (an independent statutory entity) in Queensland, Australia, undertakes regional and cumulative impact assessments for areas in which multiple tenures for unconventional gas developments overlap.Footnote f Development proponents use these models to identify their project’s impacts for submission in environmental impact assessment (EIA) processes.Footnote g |
| Technology to reduce costs of collecting or analyzing data and planning compliance activities | Established under a presidential decree, Brazil’s “Action Plan for the Prevention and Control of Deforestation in the Legal Amazon” uses satellite monitoring as a key component.Footnote h Empirical research suggests this monitoring has significantly improved targeted enforcement of illegal conversion of forests to pasture, both reducing deforestation and having positive economic effects.Footnote i |
| Prioritization of data collection to reduce costs | California’s groundwater monitoring legislation sets out express criteria for prioritizing the implementation of the duty to monitor groundwater elevations. Relevant matters relate to dependence of the area on groundwater, growth projections, adverse impacts, and ecological matters.Footnote j |
a Greater Western Water, Greater Western Water (previously City West Water) Area – Pricing Handbook 2021–22 (June 2021) 23–30, https://web.archive.org/web/20210809021133/https://www.citywestwater.com.au/sites/default/files/attachments/GWW%20(Previously%20CWW)%20Area%20-%20Pricing%20Handbook%20FY22.pdf.
b Government of Canada, “Fishery Monitoring Policy” (n.d.) www.dfo-mpo.gc.ca/reports-rapports/regs/sff-cpd/fishery-monitoring-surveillance-des-peches-eng.htm, last accessed March 18, 2025, archived at https://perma.cc/56RT-ABKX.
c Montana Code Ann. 85-2-360(1), (2), (3)(c). For further discussion of offsets, see Chapter 6.2.1.
d Environmental Investment Fund Act 2001 (Namibia) s 4.
e Footnote Ibid ss 3, 25(e).
f Water Act 2000 (Queensland) ch 3, 3A.
g Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (Australia), “Fact Sheet: Environmental Assessments” (n.d.) www.iesc.gov.au/publications/environmental-assessments, last accessed March 18, 2025, archived at https://perma.cc/KD6N-SLZL.
h Decreto nº 11.367, de 1º de janeiro de 2023 [Presidential Decree No. 11,637 of January 1, 2023] (Brazil) arts. 1, 4; Government of Brazil, Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm): Fifth Phase (2023–2027) (2023) 110–112, www.gov.br/mma/pt-br/assuntos/combate-ao-desmatamento-queimadas-e-ordenamento-ambiental-territorial/controle-do-desmatamento-1/amazonia-ppcdam-1/ppcdam_5_en.pdf, last accessed March 18, 2025, archived at https://perma.cc/7FFC-DW4Q.
i See generally, Erik Merkus, “The Economic Consequences of Environmental Enforcement: Evidence from an Anti-Deforestation Policy in Brazil” (2024) 181(106646) World Development 1–12.
j Cal. Water Code §§ 10933(b), 10933.5.
A second key issue in relation to information and costs is how rules themselves can help reduce the costs of monitoring in an absolute sense. One way to do this is to support coordination between actors to reduce unnecessary duplication.Footnote 55 This can occur through tiering and by proponents sharing reusable data, which in some jurisdictions is rarely made publicly available in practice.Footnote 56 Another approach to containing costs is to prioritize data collection using a cumulative risk–based approach (Table 5.3) to help identify impacts that are “cross-cutting, multi-sector driven, and synergistic [and therefore] of greatest significance to a region and most urgently require effective management.”Footnote 57 This can then drive intervention based on cumulative impact scores and ranks that include links to socioeconomic issues, guided by stakeholders, including communities.Footnote 58
Rules can also support technology for monitoring, analysis, and targeting compliance activities to reduce the economic and environmental costs (Table 5.3) of collecting and processing data about large areas and many activities.Footnote 59 Bioacoustic monitoring of bird calls and machine learning to identify species,Footnote 60 and eDNA (environmental DNA), are examples. Technology can help monitor background levels of environmental stress, for example, vehicle sensors that can detect cumulatively significant local-level air pollution that may otherwise be missed, as used by the US Environmental Protection Agency.Footnote 61 Environmental monitoring can guide risk-based allocations of inspection resources to maximize the regulatory violations detected from inspections.Footnote 62 Satellite imagery, for example, has been used to detect potentially unlawful small damsFootnote 63 or water usesFootnote 64 that cumulatively reduce streamflows in Australia. The US Environmental Protection Agency considered the introduction of electronic reporting of permitted point source water pollution to be a “game changer.”Footnote 65 That said, rules about environmental data collection should avoid rigidly requiring the use of any particular technology that might become superseded. Recalling the concerns discussed earlier,Footnote 66 the risks posed by technology deserve careful consideration and regulatory safeguards in terms of privacy or data protection laws, which go beyond the current scope of discussion.
Policy guidance about cumulative impact analysis and modeling can guide the use of analytical technology. Artificial intelligence provides a new way to understand complex interactions between impacts, including between climatic and more direct anthropogenic impacts; and to model the effects of a mix of types of interventions.Footnote 67 With appropriate safeguards, enforcement policies can contemplate the use of artificial intelligence and machine learning to reduce the time and cost of assessing large amounts of data to identify activities that may constitute noncompliance for further investigation by agencies. Making such predictions is a particularly prominent problem in the context of cumulative environmental effects because of the challenge of choosing where to direct compliance activities among numerous actors.
5.3.3 Sharing and Accessing Data and Information
While access to government-held environmental information is a well-studied legal issue,Footnote 68 the cumulative effects incarnation of the issue is about sharing interoperable data from multiple sources, aggregating it, and accessing aggregated data and models or other systems that use it to predict effects, then accessing that information. Sharing data and information is not just technically desirable: Since cumulative impacts intersect with concerns about environmental justice and rights,Footnote 69 access to justice also requires access to information about cumulative environmental problems. Even where these problems most directly affect communities and justice, government data may omit important categories of impact, be unusable without special expertise, or not be aggregated.Footnote 70
Law can play a central role in ensuring findable, accessible, interoperable, and reusable (FAIR) and contextualized data,Footnote 71 though this seems rarely recognized. Some laws lean in this direction: emerging natural capital and environmental accounting laws;Footnote 72 long-established impact assessment laws – EIA and strategic environmental assessment (SEA) – that require the public availability of impact assessment documents for a project or program; legal rights to environmental information, which sometimes link to human rights;Footnote 73 statutory “state of the environment” reporting; and legally mandated digital repositories that aggregate data from diverse sources, sometimes with the express rationale of better addressing cumulative impactsFootnote 74 (Table 5.4). To varying degrees, these mechanisms provide for synthesized information relevant to a particular matter of concern, as opposed to high-level overviews or reams of isolated documents; and sharing underlying data that are enduringly accessible to enable aggregation to shed light on cumulative environmental problems.
Table 5.4 Mechanisms to promote sharing and access to FAIR data
| Legal mechanism | Illustrative example |
|---|---|
| Public right to access environmental information from public and private entities | Argentina’s constitutional “right to a healthy, balanced environment” is supported by a statutory right to informationFootnote a held by governments and public service companies (whether public or private) about “the state of the environment or one of its components, natural or cultural, including their mutual interactions, as well as to the activities and works which affect them or might affect them significantly” and to “policies, plans, programs and actions relating to the management of the environment.”Footnote b South Africa’s constitution allows third parties to request private environmental information if this is required to protect constitutional environmental rights.Footnote c |
| Regular publicly available government reports on the state of the environment | The independent statutory “Commissioner for Environmental Sustainability” in Victoria, Australia, must produce publicly available “state of the environment” reports.Footnote d These include recommendations for government action, to which the government must formally respond.Footnote e Such reports are also required in other jurisdictions,Footnote f and may prominently draw attention to cumulative impacts.Footnote g |
| Digital repository of information provided by agencies, regulated entities (including environmental impact assessment (EIA) documents) and citizen scientists to ensure accessibility | India’s Biological Diversity Act of 2002 provides for a system of registering local knowledge related to biodiversity.Footnote h In Greece, reforms to EIA intended to increase transparency created a National Electronic Environmental Registry to manage and publish all EIA-related documents.Footnote i |
| Standardized data gathering and sharing for interoperability | Federal water regulations in Australia require public and some private entities to provide water data to a federal agency using standard units of measurement and providing detailed metadata.Footnote j The US Environmental Protection Agency’s data standards policyFootnote k promotes transparency and the exchange and multiple use of data between that agency, states and tribes. |
| Requirements for accessible models and aggregated data | An express legislative purpose of California’s groundwater monitoring legislation was to make groundwater level data “readily and widely available.”Footnote l Online, freely available technical models support California’s groundwater sustainability plans by predicting how much groundwater pumping depletes surface water.Footnote m |
| Environmental information sharing legislation prevails over barriers to information sharing based on commercial reasons | European Union law applies an irrebuttable presumption that it is in the public interest to disclose information about emissions to the environment, even if doing so may undermine commercial business interests or intellectual property rights.Footnote n Canadian case law implies an exception to copyright legislation in respect of disclosure requirements under recent oil and gas law.Footnote o |
| Time-limited confidentiality periods for environmental data with commercial value | UK legislation requires disclosure of oil and gas–related information either immediately, after two or five years or after expiration of a relevant licence.Footnote p |
a Maria Onestini, “Human Right to Water: Argentine Cases, Human Rights – Are They Enforceable?” in Erkki J. Hollo (ed), Water Resources Management and the Law (Edward Elgar 2017) 118, 126–127 (citing art. 41 of the Argentine Constitution, and the 2016 Regimen De Libre Acceso La Información Pública Ambiental, Ley 25831).
b Ibid 127.
c Constitution of the Republic of South Africa 1996, ss 24, 32(1)(b).
d Commissioner for Environmental Sustainability Act 2003 (Victoria) ss 17–18A; Commissioner for Environmental Sustainability Victoria, Victorian State of the Environment 2023 Report: Summary Report (2023) www.ces.vic.gov.au/sites/default/files/2023-11/State%20of%20the%20Environment%202023%20Report_Summary%20Report_DIGITAL.pdf, archived at https://perma.cc/9QPB-YK3A.
e Commissioner for Environmental Sustainability Act 2003 (Victoria) s 17(5).
f European Environment Agency, State of Nature in the EU: Results from Reporting under the Nature Directives 2013–2018 (2020) www.eea.europa.eu/en/analysis/publications/state-of-nature-in-the-eu-2020/state-of-nature-in-the-eu-2020/@@download/file, archived at https://perma.cc/8UGN-6TCB.
g E.g., European Environment Agency, The European Environment – State and Outlook 2020: Knowledge for Transition to a Sustainable Europe (2019) 74 (“key messages” for biodiversity), 134 (“key messages” for marine environment) www.eea.europa.eu/en/analysis/publications/state-of-nature-in-the-eu-2020, archived at https://perma.cc/D33K-7G3Q.
h Biological Diversity Act 2002 (India) s 36(5); Biological Biodiversity Rules 2024 (India) rr 11(f)–(h); Laasya Shekar, “What Is a People’s Biodiversity Register?” (July 7, 2024, Mongabay India) https://india.mongabay.com/2024/07/explainer-what-is-a-peoples-biodiversity-register.
i Νόμος αριθ 4014 (2011) “Περιβαλλοντική αδειοδότηση έργων και δραστηριοτήτων, ρύθμιση αυθαιρέτων σε συνάρτηση με δημιουργία περιβαλλοντικού ισοζυγίου και άλλες διατάξεις αρμοδιότητας Υπουργείου Περιβάλλοντος” [Law No. 4014 (2011) ?Environmental Licensing of Works and Activities, Regulation of Illegal Constructions in Connection with Environmental Stability and Other Provisions Falling Under the Competence of the Ministry of Environment?], art. 18, as amended; Kalliope Pediaditi and others, “Greece’s Reformed EIA System: Evaluating Its Implementation and Potential” (2018) 73 Environmental Impact Assessment Review 90–103 (praising the design of the system, which was not implemented at that time); Ministry of Environment and Energy (Greece), “Access the Electronic Environmental Register” (n.d.) www.gov.gr/en/upourgeia/upourgeio-periballontos-kai-energeias/periballontos-kai-energeias/elektroniko-periballontiko-metroo-epm, last accessed March 18, 2025, archived at https://perma.cc/FM8U-TLSY.
j Water Regulations 2008 (Australia) regs 7.06, 7.10, 7.11.
k U.S. Environmental Protection Agency, “‘Data Standards Policy,” CIO 2133.0 (June 28, 2007) www.epa.gov/sites/default/files/2013-11/documents/21330.pdf, last accessed March 18, 2025, archived at https://perma.cc/3LPP-AJ76.
l California Water Code § 10920.
m California Department of Water Resources, “Data and Tools” (n.d.) https://water.ca.gov/Programs/Groundwater-Management/Data-and-Tools, last accessed March 18, 2025, archived at https://perma.cc/DT4T-XN26; see Chapter 8.
n Regulation 1367/2006 of the European Parliament and of the Council of September 6, 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13, art. 6(1); Madrid, Private Sector Environmental Information, 194–195.
o Brown, “The Future of Intellectual Property,” 122–123.
p Ibid 114–115 (citing Oil and Gas Authority (Offshore Petroleum) (Disclosure of Protected Material after Specified Period) Regulations 2018 (United Kingdom)).
As discussed in Chapter 2, political and commercial sensitivities may discourage governments and regulated entities from producing information that is FAIR, and sharing it. Regulated entities may resist attempts to standardize data collection if this imposes additional costs or is seen to pose risks. Agencies can consult regulated entities about standardization to find ways to reduce costs faced by these entities; this may be especially important for small recipients of regulatory “carrots,” such as parties to land stewardship agreements that involve reporting requirements.Footnote 75
Regulatory designers should also consider potentially perverse consequences of requiring data sharing: In the context of concerns about nutrient pollution of the Great Barrier Reef in Queensland, Australia, a proposed legal power to require farmers to provide data on fertilizer application, which would have indicated overapplication, led to the deletion of a decade’s worth of voluntarily collected data.Footnote 76 But, in some cases, mandatory data sharing can be welcomed by industry operators who benefit from accessing others’ information.Footnote 77 One Australian information-sharing initiative to store and share data from project proponents is expected to reduce project application assessment times by six to twelve months.Footnote 78 Yielding to industry concerns, some jurisdictions exempt data that constitute business confidential information and trade secrets from environmental information sharing requirements, but this differs between jurisdictions and may give way to the values of public health and environmental protection.Footnote 79 Table 5.4 gives further examples of possible approaches.
5.4 Conclusion
Information is critical for understanding the things we care about and the cumulative threats that they face, so that rules for intervention can restore or protect them from cumulative environmental harm. This is about much more than just predicting cumulative impacts in the context of project-level EIA. It requires gathering and aggregating, in an ongoing way, comprehensive and high-quality data, analyzing it, allocating the costs of doing these things (probably with an eye to reducing those costs, given the data-hungry nature of cumulative environmental problems), and ensuring that information is shared and can be accessed by governments, affected communities, and other stakeholders. By drawing on formal rules from around the world, this chapter has illustrated diverse possibilities for designing rules to do these things and address the disincentives to gathering and sharing data and information that would otherwise threaten effective action to solve cumulative environmental problems.
More than just a technical issue about having good information to reveal problems and make decisions, information is about power and accountability. The knowledges that are accepted as legitimate and the practical accessibility of information about harm influence environmental democracy, environmental justice, and the rule of law. Regulatory systems, then, should not be mere information-takers, they should be information-makers. That is, rules should be actively designed not only to include – fairly – diverse sources of information already produced, which are needed to understand and respond to cumulative environmental problems, they should be designed to actively fill gaps in existing knowledge.
By themselves, rules for information cannot solve cumulative environmental problems. Cumulative environmental problems need advocates, both within and outside government, and those advocates need information both to act and to know that action is needed. Rules for information must also be integrated with the other functions of the CIRCle Framework, informing and responding to how the matter of concern is conceptualized, interventions are designed, and government and nongovernment actors come together to address the problem of cumulative environmental harm.
Open access